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testator does not actually pass or dispose of by a present declaration of his mind, remain in him to be passed or disposed of by a future conveyance or will; but by such only as are competent in law, by the perfection of their respective executions, to the gift or transfer of the property, according to its nature and requisites. And this rule obtains equally in respect to legal and trust estates, for trust estates, are as much within the statute of frauds, with regard to the formalities requisite to the perfection of a will as legal estates, since the same mischiefs would follow from the omission in the one case as the other.
It is established that an instrument, whatever is if an instrument its form, whether it be a deed poll or indenture, is to have effect
be not intended testamentary in its operation and quality, if it be the the death of intended not to operate till the death of the party its operation and who made it. The circumstance, and not the form, quality, what
ever may be it's must decide the character of the instrument. Thus, forin, therefore, the deed in the above cited case of Habergham v. Vincent could have no other operation than as a testamentary paper; and presented itself, under this general character, in three distinct lights--as a codicil—as an exercise of the power reserved by the will—or as an integral and original part of the will itself, by incorporation into its substance.
• Moor 177. 2 Leon, part 4, 159, 166. Audley's case, Dyer, 166, 4, Greene v. Proude, 1 Mod. 177,
A codicil. has a distinct commencement, and though it is said to be a part of the will, yet it becomes so by first acting upon the will, and in a manner drawing it down to the date of its own publication; and can have no operation upon freehold estate, either as part of the will, or by its own eificiency, unless it be attested as the statute directs.
Difference between a convey• ance to uses and a will, in * respect to the legality of reserving a power
As an exercise of power of appointment, it is met by the rule, that a testator cannot by his will reserve a right to devise freehold estate by a future
testamentary instrument, not attested. according to of future dispo- the statute of frauds, however practicable this may
be under the uses of a conveyance. Where there is a conveyance, and a power is reserved under the uses thereof, the estate is parted with, the land is gone, and the power which is in truth only an executory use, is collateral to the land, and may be limited to be executed by any instrument whatever; by a decd or writing, with or without witnesses; for its specific operation is not in question, where the terms of the conveyance reserving the power have defined the mode of its execution; though, as we have seen, if it be reserved to be executed by a will in general terms, the party will be understood to have intended a proper will, according to the statute. But by his will, a man parts with nothing before his death, till which time his will is ambulatory, incomplete, and revocable; he has the same absolute dominion he had before; and if by
any subsequent act he parts with any portion of his estate, whether it be a part of that already devised, or a part affected to be specially reserved for his future appointment, he parts with it as owner, and not instrumentally, and by virtue of an original, and not a derivative power,
refers, if it com
fectual as a tes
tute; and such paper, to be so
But the truth seems to be, that every paper to which a will refers must be incorporated originally Every paper to
which a will, with the will itself, if real property is to be affected duly attested, by it, or it can avail nothing, unless it is itself ex- prise a disposiecuted according to the statute of frauds. And fur- tion of real prother, the rule is, that an instrument properly attested, tamentary pato incorporate into itself another instrument, not at- be incorporated
per, must either tested, must describe it so as to manifest distinctly what the will, or be the paper
is that is meant to be incorporated, in such ing to the staway
that the court can be under no mistake". Therefore, it did not appear to the court, in Habergham
incorporated, v. Vincent, that the second instrument, although and described testamentary in its nature, could be incorporated by such will. into the will; which referred to nothing actually in existence, but to an intention merely; and it has been sufficiently shewn, that the will could create no power with a special mode of execution. In that case, Mr. Justice Wilson said, that he believed it to be true, and he had found no case to the contrary, that if a testator in his will refers expressly to any paper already written, and has so described it that there can be no doubt of the identity, and the will
must be distinct.
* Smart v. Prujean, 6 Vez. jun. 565.
is executed in the presence of three witnesses, such paper makes part of the will, whether executed or not; and by such reference he does the same, as if he had actually incorporated it. Because words, of relation have a stronger operation than any
other. But the difference between that case, and the reference to a future intention, is striking: in the former, said the judge, there is a precise intention mentioned at the time of making the will; for the paper makes out the intention at the time : but when a man declares he will in some future paper do something, he says, he will make a will as far as his intention is then known to himself, but he will take time to consider what he will do in fum. ture,
With respect, however, to the copyhold estatc, which was a subject of the dispositions in the case of Habergham v. Vincent, it was held quite clear, by the Chancellor and Judges, upon the doctrine a little before stated, that as the deed poll was capable of being regarded as a testamentary paper, it was sufficient to pass the copyholds, and I apa prehend it follows, from the principles of the reasoning jnst produced, that as a testamentary paper, it must have operated as a codicil ; for it could neither be incorporated into the will as an original part of it, or operate by virtue of the power affected to be reserved by the will,
Wills charging Lands.
We observe, that in the above-mentioned case of By a will duly
executed, charge Habergham v. Vincent, the counsel for the surviving ing land genetrustee endeavoured to maintain the competency of caly wittestegar the testator, by a will executed according to the colay any numstatute, to reserve a power of future disposition of legacies on the land by an instrument not perfected as the statute land, by a subse. directs, by analogy to the case of a general charge aty disposition of legacies on lands by a will duly executed; whereby it has been held', that a testator enables himself to charge the land with any number of additional legacies, by a subsequent instrument not attested so as to pass lands (i).
lands (i). This, indeed, seems to be established doctrine with respect to legacies, which Lord Hardwicke said was attended with no greater inconvenience than arose from a man's charging his lands by will with the payment of his debts,
· Masters v. Masters, 1 P. Wms, 423. and Brudenell o. Boughton, 2 Atks. 274. and see the late case of Rose v. Cun. aingham, 12 Vez. Jun. 29.
(1) There seems to be no occasion to prove a will in the spiritual Court to entitle a legatee to recover his legacy out of the real estate, % Atk. 361.